IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARK EDWARD HURST, 

Plaintiff, 

vs. 

OHIO DEPARTMENT OF REHABILITATION 

AND CORRECTION, et al., 

Defendants. 

Case No. 2:11-CV-1090 

Judge Smith 

Magistrate Judge King 

OPINION AND ORDER 

Plaintiff Mark Hurst, a former state prisoner, brings this action 

against defendants Ohio Department of Rehabilitation ["ODRC"], Gary 

Mohr, Mona Parks, Dr. David Weil, Karen Stanforth, Ralph Wilson, and 

six unidentified members of the "Collegial Review Committee" under 42 

U.S.C. § 1983, alleging that defendants acted with deliberate 

indifference to his medical needs in violation of the Eighth Amendment 

to the United States Constitution. On October 23, 2012, the United 

States Magistrate Judge issued a Report and Recommendation, Doc. No. 

47, recommending that Defendants' ~tion for Summary Judgment, Doc. 

No. 36, be granted as to all of plaintiff's claims except for the§ 

1983 individual capacity claims against Dr. Weil. This matter is 

before the Court on Dr. Weil's Objections to the ~gistrate Judge's 

Report and Recommendation ("Defendant's Objections"), Doc. No. 50. 

Plaintiff has not filed objections, but he has filed a response to 

Defendant's Objections. Doc. No. 51. For the reasons that follow, 

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Defendant's Objections are OVERRULED. The Report and Recommendation 

is ADOPTED and AFFIRMED. 

Plaintiff alleges that, while at the Madison Correctional 

Institution ("MaCI"), he was denied necessary surgery and rehabilitation 

for a rotator cuff tear. David C. Weil, M.D., was employed by the ODRC 

and treated plaintiff while he was incarcerated at the MaCI. Dr Weil 

referred plaintiff to an orthopedic specialist to determine if 

plaintiff's rotator cuff tear qualified for surgical repair. In December 

2010, that specialist ordered surgery for the tear. However, in March 

2010, Dr. Weil cancelled that surgery as "not immediately medically 

necessary." Exhibit B, attached to Defendants' Motion for Summary 

Judgment, pp. 14-15. Dr. Weil explained the cancellation of plaintiff's 

surgery as follows: 

Due to the fact the [sic] Mr. Hurst did not present 

to me with any complaints regarding his shoulder 

since October of 2010, I decided to postpone Mr. 

Hurst's surgery on March 4, 2011 until such time 

that I could conduct a face to face assessment of 

any ongoing pathology. This was communicated to 

the Collegial Review Committee who deemed this 

course of action reasonable due to the large time 

gap as mentioned above. Accordingly, the 

postponement and ultimate cancellation of his 

surgery came with an invitation via an order to the 

staff to accommodate follow-up with me if he had 

any residual symptoms. 

Declaration of David C. Weil, M.D., , 8, attached to Defendants' ~tion 

for Summary Judgment. After plaintiff's release from prison, another 

physician expressed his doubt that, at that point, plaintiff's rotator 

cuff tear could be repaired. Plaintiff's Response, Appendix 7, at pp. 

2-5, Doc. No. 38. 

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The Magistrate Judge recommended that, as the motion relates to Dr. 

Weil, Defendants' ~tion for Summary Judgment should be denied: 

Under the circumstances, a jury could reasonably find 

that Dr. Weil disregarded a known risk by cancelling 

plaintiff's rotator cuff surgery, to plaintiff's detriment. 

See Plaintiff's Response, Appendix 7, at p. 2 (Dr. Jackson 

advised plaintiff "that his rotator cuff tear may not be 

repairable this long post injury-a concern is fixed 

contracture of the supraspinatous with muscle wasting that 

prevents pulling the rotator cuff back to its insertion for 

repair. Rotator cuff repairs are more predictably repairable 

within a few months of injury."). Plaintiff's treatment for 

shoulder pain continued throughout this relevant period and 

even after his surgery was cancelled. See Defendants' Motion, 

Exhibit B, at pp. 11-13; Plaintiff's Response, Appendix 1. 

Report and Recommendation, pp. 15-16. 

When a magistrate judge issues a report and recommendation 

regarding a dispositive pretrial matter, such as a motion for summary 

judgment, the district court must review de novo any portion of the 

report and recommendation to which a specific objection is made. Fed. 

R. Civ. P. 72(b); 28 U.S.C. § 636(b); United States v. Curtis, 237 

F.3d 598, 603 (6th Cir. 2001). "The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter 

of law." Fed. R. Civ. P. 56(a). 

Dr. Weil objects to the Report and Recommendation as contrary to 

law and based on clearly erroneous factual findings. Defendant's 

Objections, pp. 6, 9. Dr. Weil's objections are not, however, 

entirely clear. Rather than specifically designating the portion of 

the Report and Recommendation that he questions and the basis for his 

objections, Dr. Weil makes the same general arguments as he did in 

Defendants' ~tion for Summary Judgment. Dr. Weil essentially argues 

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- as he did in Defendants' frbtion for Summary Judgment, see 

Defendants' frbtion for Summary Judgement, p. 12 - that this case 

represents a "simple disagreement as to the type of treatment and not 

a constitutional violation." Defendant's Objections, p. 11. 

The Eighth Amendment to the United States Constitution prohibits 

cruel and unusual punishment. To prevail on his § 1983 individual 

capacity claim against Dr. Weil, plaintiff must prove that Dr. Weil 

acted with "deliberate indifference to [his] serious medical needs." 

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This standard includes 

both an objective and a subjective component. The objective component 

requires a showing of a "sufficiently serious" medical need. Farmer 

v. Brennan, 511 U.S. 825, 834 (1994). The subjective component 

requires a plaintiff to "allege facts which, if true, would show that 

the official being sued subjectively perceived facts from which to 

infer substantial risk to the prisoner, that he did in fact draw the 

inference, and that he then disregarded that risk." Comstock v. 

McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 

837). However, "a plaintiff need not show that the official acted 

'for the very purpose of causing harm or with knowledge that harm will 

result."' Id. (quoting Farmer, 511 U.S. at 835). "Instead, 

'deliberate indifference to a substantial risk of serious harm to a 

prisoner is the equivalent of recklessly disregarding that risk.'" 

Id. (quoting Farmer, 511 U.S. at 836). On the other hand, a dispute 

over the course of medical treatment is not actionable under §1983; 

where an inmate has received some medical care and the dispute is over 

the adequacy of that care, federal courts "are generally reluctant to 

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second guess medical judgments " Graham ex rel. Estate of 

Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004); 

Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). 

Defendant does not object to the Magistrate Judge's conclusion 

that a reasonable jury could find that plaintiff suffered a serious 

medical need, i.e., a "complete tear of the rotator cuff with 

retraction of the supraspinatus muscle and tendon." Report and 

Recommendation, pp. 11-12. 

As to the subjective component, Dr. Weil does not expressly 

object to the Magistrate Judge's conclusion that "[a] reasonable jury 

could find that Dr. Weil both subjectively perceived facts from which 

to draw an inference, and did draw an inference, that a substantial 

risk to plaintiff existed." Id. at p. 12. He does, however, argue 

that this case represents a "simple disagreement as to the type of 

treatment and not a constitutional violation." Defendant's 

Objections, p. 11. According to Dr. Weil, he "made a medical 

determination based upon the large gaps in requesting treatment that 

the surgery was not medically necessary at the time," and "[h]e did 

not have any knowledge that harm would result" from cancelling 

surgery. Id. at pp. 7-11. 

The Magistrate Judge addressed these same arguments in making her 

recommendation and this Court agrees with that recommendation. Dr. 

Weil knew of plaintiff's rotator cuff tear and knew, too, that surgery 

had been recommended by the specialist to whom he had referred 

plaintiff. See Dr. Weil Declaration, attached to Defendants' frbtion 

for Summary Judgment as Exhibit A, at ~~ 6-7. Defendant Weil 

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cancelled that surgery, purportedly because of gaps in his treatment, 

but the medical records suggest that there were no gaps in plaintiff's 

treatment. See Defendants' ~tion for Summary Judgment, Exhibit B, at 

p. 11 (the orthopedic specialist's "report and recommendation[]" 

providing that plaintiff reported shoulder pain on December 5, 2010), 

p. 13 (plaintiff's December 20, 2010 prescription for Motrin and 

February 28, 2011 prescription for ibuprofen). There is also evidence 

suggesting that plaintiff's rotator cuff may no longer be repairable. 

See Plaintiff's Response to Defendants' ~tion for Summary Judgment, 

Doc. No. 38, Appendix 7, at p. 2. 

Under the circumstances, a reasonable jury could find that the 

medical decisions made in this case were such a substantial departure 

from accepted professional judgment as to amount to deliberate 

indifference. See Lemarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir. 

2001) ("'[A] prisoner is not required to show that he was literally 

ignored by the staff' to prove an Eighth Amendment violation. .") 

See also Rahoi v. Sirin, 252 F.R.D. 464, 475-76 (W.D. Wis. 2008) 

(denying summary judgment where a prisoner was provided with pain 

medication and other accommodations such as lower bunk and first floor 

restrictions for a torn rotator cuff) . 

Dr. Weil also objects to the Report and Recommendation on the 

basis that the Magistrate Judge made "clearly erroneous" factual 

findings that are inconsistent with plaintiff's medical records. 

Defendants' Objections, pp. 6-9. Again, Dr. Weil's objections are not 

entirely clear, but they appear to relate to the objections discussed 

supra. He objects to the "factual finding that 'the medical records 

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do not suggest that Dr. Weil had any interaction with Plaintiff 

between October 14, 2010 and March 4, 2011, when he cancelled 

Plaintiff's surgery' because prescriptions for ibuprofen and Motrin 

were continued throughout this period." Id. at pp. 6-7. Dr. Weil 

also objects to the "factual finding that Plaintiff's treatment for 

shoulder pain continued throughout this relevant period." Id. at p. 

8. According to Dr. Weil, plaintiff did not present to him personally 

with any complaints regarding shoulder pain between October 14, 2010 

and March 4, 2011, when Dr. Weil cancelled plaintiff's surgery. Id. 

at pp. 6-9. 

Dr. Weil's objections are without merit. Regardless of whether 

plaintiff presented to Dr. Weil personally for shoulder pain between 

October 14, 2010 and March 4, 2011, the record is replete with 

evidence that plaintiff complained of, and was provided medication 

for, shoulder pain during this period. See Defendants' ~tion for 

Summary Judgment, Exhibit B, at p. 11 (the orthopedic specialist's 

"report and recommendation[]" providing that plaintiff reported 

shoulder pain on December 5, 2010), p. 13 (plaintiff's December 20, 

2010 prescription for Motrin and February 28, 2011 prescription for 

ibuprofin); Plaintiff's Response to Defendants' ~tion for Summary 

Judgment, Doc. No. 38, Appendices 4 and 5 (plaintiff's February 20 and 

February 26, 2011 informal complaints expressing his belief that 

surgery was necessary and his concern that delay may cause permanent 

damage). Further, the Magistrate Judge did not find, as Dr. Weil 

argues, that "the medical records do not suggest that Dr. Weil had any 

interaction with Plaintiff between October 14, 2010 and March 4, 2011, 

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• 

when he cancelled Plaintiff's surgery because prescriptions for 

ibuprofen and Motrin were continued throughout this period." Compare 

Defendant's Objections, pp. 6-7 (quotations omitted; emphasis added), 

with Report and Recommendation, p. 15 (finding that (1) plaintiff's 

"medical records do not suggest that Dr. Weil had any interaction with 

plaintiff between October 14, 2010 and March 4, 2011, when he 

cancelled plaintiff's surgery;" and (2) "[p]rescriptions for ibuprofen 

and Motrin were continued throughout this period."). 

In short, the Court finds no error in the Magistrate Judge's 

discussion of the facts of this case or in her analysis of plaintiff's 

claims; there remains a genuine issue of material fact as to whether 

Dr. Weil's medical decisions in this case were such a substantial 

departure from accepted professional judgment as to amount to 

deliberate indifference. 

Pursuant to 28 U.S.C. § 636(b) (1), this Court has conducted a 

careful de novo review of the Report and Recommendation and 

Defendant's Objections. For the foregoing reasons and for the reasons 

detailed in the Magistrate Judge's Report and Recommendation, 

Defendant's Objections, Doc. No. 50, are OVERRULED. The Report and 

Recommendation, Doc. No. 47, is ADOPTED and AFFIRMED. Plaintiff's § 

1983 individual capacity claims against Dr. Weil may proceed. 

Defendants' ~tion for Summary Judgment, Doc. No. 36, is GRANTED as to 

plaintiff's remaining claims. 

8 

S/ George C. Smith 

George C. Smith, Judge 

United States District Court 

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